THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.442 of 2020
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Date Order with Signature(s) of Judge(s)
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Mr. Justice Abdul Maalik Gaddi
Justice Mrs. Rashida Asad
Applicant : Nizam-ud-Din son of Mehrab-ud-Din,
through Mr. Muhammad Hanif Samma, Advocate.
Respondent : The State through Mr. Khadim Hussain,
Kooharo, Additional Prosecutor General,
Sindh.
Complainant : None present.
Date of hearing : 16.04.2020
Date of Order : 16.04.2020
ORDER
Abdul Maalik Gaddi, J. – Through this bail application, applicant Nizam-ud-Din seeks post-arrest bail in Crime No.103 of 2019, under Section 385/386/34, PPC read with Section 7 of Anti-Terrorism Act, 1997, registered at police station Manghopir, Karachi. Prior to filing this bail application, applicant/accused also approached the trial Court for same relief, but the same was declined vide order dated 19.10.2019.
2. The allegations against the applicant/accused is that on 10.02.2019, when complainant namely, Ghulam Nabi son of Wali Muhammad was present at his factory situated at Ghazi Goth near Zia Masjid, Manghopir, Karachi, present applicant/accused along with his other companions named in FIR came at his factory and demanded/arranged bhatta/extortion money of Rs.30,00,000/- for them under the dint of weapons within three days; otherwise, he would be killed and thereafter, they left his factory.
3. Mr. Muhammad Hanif Samma, learned Counsel for applicant argued that applicant is innocent and has been falsely implicated in this case by the complainant due to his ulterior motive; that there is no specific allegations against the applicant in FIR, so also in statements recorded under Section 161 Cr.P.C. of prosecution witnesses; that there is inordinate delay of fifty four (54) days in registration of FIR for which no satisfactory explanation has been furnished by the complainant, as such, he was of the view that applicant has been named in the FIR with due deliberation and consultation and such delay in lodging of FIR makes the entire case to be doubtful one; that co-accused namely, Muhammad Idrees, Noor Muhammad, Rasheed Ahmed and Jamaluddin almost on same allegations have already granted bail by the trial Court, therefore, following the rule of consistency, the present applicant is also entitled for same relief.
4. On the other hand, Mr. Khadim Hussain Kooharo, learned Additional Prosecutor General, Sindh while opposing this bail application argued that applicant/accused is very much involved in this heinous offence and he is nominated in FIR with specific role; that present applicant along with his companions demanded huge extortion money from the complainant, so also extended him threats for serious dire consequences in non-payment of bhatta and according to him, in case, if the applicant is granted bail, he will tamper the prosecution evidence and will abscond away; that sufficient material is available with the prosecution to connect the him in this case and prayed for dismissal of this bail application.
5. We have heard the learned counsel for the parties at considerable length and have also examined the police file, so made available before us.
6. On perusal of record, it reveals that case has been challaned. The present applicant/accused is no more required for investigation. The allegations against the applicant/accused is that on 10.02.2019, he along with his other companions approached to the complainant at his factory and demanded bhatta/extortion money for them by force and on his refusal, they issued him murderous threats.
7. It is noted that alleged incident took place on 10.02.2019, whereas, the FIR of the said incident was lodged by the complainant on 05.04.2019, after the delay of about fifty four (54) days for which no satisfactory explanation has been furnished. Nothing on record that just after the incident, complainant has made any complaint with regard to alleged incident to higher authorities. When confronted this aspect to learned Additional Prosecutor General, Sindh to explain as to why complainant remained mum for long time after alleged incident and lodged this FIR after fifty four (54) days, he has no satisfactory answer with him. Nothing on record that applicant had received any bhatta/extortion money from complainant, therefore, all these aspects of the case requires further inquiry as to whether the incident has taken place in a fashion as stated in FIR or otherwise.
8. It is also noted that applicant was arrested on 05.04.2019 in this case when he was already under arrest in Crime No.223 of 2019 of police station SITE and nothing was recovered from his possession. It is also noted that co-accused namely, Muhammad Idrees, Noor Muhammad, Rasheed Ahmed, Sheheryar and Jamaluddin have already been granted bail by the trial Court, although, the allegations against them are almost on same facts, therefore, following the rule of consistency, the present applicant is also entitled for same relief.
9. It has vehemently been argued by the learned Additional Prosecutor General, Sindh that applicant has also involved in thirty two (32) other criminal cases and if bail is granted to him, he would jump the bail bond and would attempt to tamper the prosecution evidence, therefore, he is not entitled to any indulgence in the matter of bail. We have, however, not felt persuaded to agree with the learned Additional Prosecutor General, Sindh in this regard for the reasons that in our humble opinion, prior to conviction, it is presumed that every accused is innocent. Insofar as the case in hand is concerned, despite repeated queries by this Court, learned Additional Prosecutor General, Sindh has failed to establish that the applicant was ever convicted in any case registered against him, therefore, he cannot be refused bail merely on the ground that certain other criminal cases have been registered against him. In this regard, we are supported with the case of Jafar @ Jafri v. The State reported in 2012 SCMR 606.
10. For what has been discussed above, we have no doubt in our mind to hold that the applicant has made out a case for further inquiry into his guilt within the meaning of section 497(2), Cr.P.C. Consequently, this bail application is allowed and the applicant is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (rupees two lacs only) with one surety in the like amount to the satisfaction of the learned trial Court.
11. Before parting with this order, it is observed that the observations made in this order are tentative in nature and the same would have no bearing on the outcome of the trial of the case. It is made clear that in case, if applicant/accused during proceedings before the trial Court, misuses the concession of bail, then the trial Court would be competent to cancel the bail of applicant/accused without making any reference to this Court.
JUDGE
JUDGE
Faizan A. Rathore/PA*